Aldridge Currie v. Neil McDowell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALDRIDGE CURRIE, No. 13-16187

Plaintiff-Appellant,

D.C. No.

v. 3:11-cv-05194-CRB

NEIL MCDOWELL, Warden,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, Senior District Judge, Presiding

Argued and Submitted September 16, 2015

San Francisco, California

Filed June 8, 2016

Before: William A. Fletcher, Marsha S. Berzon,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge Berzon;

Dissent by Judge Bea

2 CURRIE V. MCDOWELL

SUMMARY*

Habeas Corpus

Reversing the district court’s denial of a habeas corpus

petition, the panel held that a prosecutor’s peremptory strike

of an African American juror violated the Equal Protection

Clause.

Under Batson v. Kentucky, a claim that a peremptory

strike has been used against a juror on the basis of the juror’s

race is analyzed in three steps. First, the defendant must

make out a prima facie case by showing that the totality of the

relevant facts gives rise to an inference of discriminatory

purpose. Second, the state must offer permissible race-

neutral justifications for the strike. Third, the defendant must

prove purposeful discrimination by a preponderance of the

evidence.

The panel held that the state appellate court violated

clearly established federal law in its Batson step one analysis.

The panel also held that, even examining the state appellate

court’s decision under the Antiterrorism and Effective Death

Penalty Act’s doubly deferential standard, the state appellate

court’s alternative ground for affirming the trial court, a

Batson step three analysis, was based on an unreasonable

determination of the facts in light of the evidence presented.

The panel concluded that the prosecutor’s reasons for striking

the juror were all flawed¯each reason was either

unreasonable, demonstrably false, or applied just as well to

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CURRIE V. MCDOWELL 3

the non-black jurors that the prosecutor allowed to remain on

the jury. The panel remanded with instructions for the district

court to issue a conditional writ of habeas corpus.

Dissenting, Judge Bea wrote that the state court did not

unreasonably apply clearly established federal law or base its

decision on factual determinations that were unreasonable in

light of the evidence before it.

COUNSEL

Jay A. Nelson (argued), Law Office of Jay A. Nelson,

Portland, Oregon, for Plaintiff-Appellant.

Allen R. Crown (argued), Deputy Attorney General; Peggy S.

Ruffra, Supervising Deputy Attorney General; Gerald A.

Engler, Chief Assistant Attorney General; Kamala D. Harris,

Attorney General of California; San Francisco, California; for

Defendant-Appellee.

OPINION

BERZON, Circuit Judge:

This is the latest case arising out of a jury selected by

David Brown, a prosecutor with a history of unconstitutional

race-based peremptory strikes. We previously held that

Brown violated the Constitution’s Equal Protection Clause

when he struck three African-American women from the jury

of petitioner Aldridge Currie’s first trial. See Currie v.

Adams, 149 F. App’x 615 (9th Cir. 2005). At the retrial

resulting from that opinion, the trial judge found that Brown

4 CURRIE V. MCDOWELL

had violated Batson again by striking three African-American

prospective jurors.

This case arises out of Currie’s second retrial, in which

Brown was the prosecutor once again. In this third attempt to

prosecute Currie, Brown removed one African American

juror via peremptory strike. His stated reasons for striking

this juror were all flawed — each reason was either

unreasonable, demonstrably false, or applied just as well to

the non-black jurors Brown allowed to remain on the jury.

Because “[t]he ‘Constitution forbids striking even a single

prospective juror for a discriminatory purpose,’” Foster v.

Chatman, No. 14-8349, 578 U.S. __, __, slip op. at 9 (May

23, 2016) (quoting Snyder v. Louisiana, 552 U.S. 472, 478

(2008)), we hold that Currie’s habeas petition should be

granted.

I. Background

A. The Batson Framework

This case, like its predecessor cases involving Brown and

Currie, centers around the proper application of the Supreme

Court’s decision in Batson v. Kentucky, 476 U.S. 79 (1986).

Batson held that the Fourteenth Amendment’s Equal

Protection Clause prohibits prosecutors from using a

peremptory challenge against a juror on the basis of that

juror’s race. See id. at 89. This prohibition is enforced via

Batson’s three-step process.

In the first Batson step, “the defendant must make out a

prima facie case by showing that the totality of the relevant

facts gives rise to an inference of discriminatory purpose.”

Johnson v. California, 545 U.S. 162, 168 (2005) (citation and

CURRIE V. MCDOWELL 5

internal quotation marks omitted). Second, if that prima facie

case is made out, the state must offer “permissible race-

neutral justifications for the strike[].” Id. Third, the trial court

must decide whether, given all of the relevant facts, the

defendant has proven purposeful discrimination. See

Crittenden v. Ayers, 624 F.3d 943, 958 (9th Cir. 2010).

At this third step, the defendant has the burden of proving

purposeful discrimination by a preponderance of the

evidence. See id. (citing Batson, 476 U.S. at 98). The

defendant need not prove that all of the prosecutor’s race-

neutral reasons were pretextual, or even that the racial

motivation was “determinative.” Snyder v. Louisiana,

552 U.S. at 485 (citing Hunter v. Underwood, 471 U.S. 222,

228 (1985)). Instead, to prove a Batson violation, the

defendant must demonstrate that “race was a substantial

motivating factor” in the prosecutor’s use of the peremptory

strike. Cook v. LaMarque, 593 F.3d 810, 815 (9th Cir. 2010).

B. Prior Proceedings

On July 12, 1995, Currie and a man named Santos

Maldonado got into an argument about a gun Maldonado had

acquired from a mutual acquaintance. Later that day, while

Maldonado and his girlfriend were sitting in Maldonado’s

car, Currie approached Maldonado and asked how much

methamphetamine he would sell Currie for $100.00. After

Maldonado answered, Currie said that he had money around

the corner and left. He returned and shot Maldonado in the

neck, then robbed Maldonado of a gold chain, money, and

methamphetamine. Maldonado later died due to his injury.

Currie is African American, while Maldonado was of

Hispanic descent.

6 CURRIE V. MCDOWELL

Brown successfully prosecuted Currie in California

Superior Court, obtaining Currie’s conviction for second

degree murder, attempted robbery, and being a felon in

possession of a firearm. That conviction was affirmed on

direct appeal, but we granted habeas relief after finding that

Brown had exercised a peremptory challenge in violation of

Batson v. Kentucky, 476 U.S. 79 (1986). Currie v. Adams,

149 F. App’x 615 (9th Cir. 2005) (“Currie I”). Shortly before

we ruled in that case, the Supreme Court held that Brown had

committed a Batson violation in a separate case, Johnson v.

California, 545 U.S. 162 (2005).

The state retried Currie in May 2009, with a new judge

presiding and Brown again serving as prosecutor. During

voir dire, the judge declared a mistrial due to another Batson

violation by Brown. The court commenced a second retrial

with a new jury (again with Brown as the prosecutor). It is

that second retrial at issue in today’s case.

C. Jury Selection

Currie’s Batson claim centers on the striking of a

prospective juror named Jones, an African-American woman.

Jones made it through the first round of jury selection, during

which the court questioned and excused jurors for hardship.

The court then described “the nature of the charges” to the

jurors who remained, including Jones, and gave those jurors

a pair of questionnaires to fill out. After the jurors had

completed the questionnaires, they were read the Information

against Currie and voir dire began.

During voir dire, Jones was questioned by both the court

and Brown; defense counsel did not question her. The court

asked Jones only two questions: whether her relationships

CURRIE V. MCDOWELL 7

with people who have used drugs would prevent her from

keeping an open mind during the trial, and whether there was

anything else the parties should know about her. Jones

answered that she would be able to “keep an open mind,” and

that there was nothing else the parties needed to know.

Brown’s questioning of Jones was slightly longer. The

jury questionnaires had asked whether the fact that Currie had

been arrested and “charged with these crimes” caused Jones

to be “biased against him” or think he “is probably guilty of

something.” Jones had answered “no” to each question,

writing in the comments section to the question “no I don’t

know what his [sic] is accused of and he is presumed not

guilty until proven.” Following up on the questionnaire,

Brown asked Jones on voir dire “how do you feel about the

presumption of innocence?” Jones replied “I can’t conclude

that he’s guilty or not, because I don’t know the first thing of

the case.”

Brown asked Jones several more questions about the

presumption of innocence and the prosecutor’s burden, and

then moved on to other jurors. Later, after asking other jurors

about whether they were concerned about the substantial time

that had passed since the acts underlying the charges against

Currie, Brown briefly turned to Jones and asked “how about

you with regards to the time issue? Does that concern you at

all?” Jones responded “no.” There was no further

questioning of Jones that day.

The next day, before the potential jurors had entered,

Currie’s counsel noted that after the previous day’s dismissal

of potential jurors for hardship and for cause, only two

African-American potential jurors remained in the pool.

Brown objected to the idea that defense counsel or the court

8 CURRIE V. MCDOWELL

could characterize individuals’ race based on their

appearance, an argument he had made at several points during

both of Currie’s prior trials. The trial judge stated that he had

not been keeping track and so was unable to arrive at his own

estimate of the number of African-American potential jurors.

Before the court called in the panel of prospective jurors,

Brown noted that there were two jurors that he “didn’t get a

chance to ask questions of” the previous day — Jones and

another juror, Ms. Ruiz. Brown stated that there were some

inconsistencies on Jones’s questionnaires that he “didn’t get

a chance to go into,” and “those issues caused [him] some

concern that [he] didn’t get a chance to voir dire on” due to

the voir dire time limits. Brown referenced, in particular,

question number 21 on the longer questionnaire and question

number 10 on the shorter questionnaire.

Question 21 asked “[h]ave you, any member of your

family or any close friend(s) ever been ARRESTED?” Jones

had marked “yes,” and written “friends + family members

(arrested for drug related issues.)” Question 10 asked “[h]ave

you, a family or household member, or close friend been a

victim, witness or defendant in a criminal matter?” Jones had

marked “no.” Defense counsel stated that he had concerns

about a third juror, Mr. Greenslade, and the court decided to

conduct “limited supplemental questioning” of the three

jurors.

The court asked Jones about her answers to questions 21

and 10, and Jones replied that her answers had been in

reference to her brother and cousin. She said that her cousin

“is no longer with us. And my brother was out of Alameda

County about six years ago.” The court confirmed that she

felt they had both been treated fairly, and then asked Jones if

CURRIE V. MCDOWELL 9

she thought either of those relationships would interfere with

being objective in the present case. Jones replied “[n]o, not

at all.” After that round of questioning, the prosecutor and

defense counsel used their peremptory challenges to strike

Ruiz and Greenslade, respectively, along with several other

prospective jurors who had been seated that day.

The court proceeded with empaneling, questioning, and

excusing jurors until Currie’s counsel accepted the panel. At

that point, Brown used a peremptory challenge to strike Jones

from the panel. Currie’s counsel asked to approach the

bench, the court cleared the courtroom, and Currie’s counsel

moved for a mistrial under Batson.

The court noted that Jones was African-American, and

that it was appropriate to consider Brown’s prior history of

Batson violations for purposes of determining whether there

was a prima facie case of racial discrimination. Nonetheless,

the court held that “a prima facie showing has not been

made.” Before giving Brown a chance to proffer potential

race-neutral reasons, the court proceeded, on its own, to

volunteer a justification for Brown’s strike. It stated that

although it had “no reason to disbelieve [Jones] that she

believes that [her family members] were treated fairly and

would not hold that against the People in the present case,” it

did not “believe that the prosecutor is required to take the risk

that either subconsciously or during the presentation of

evidence her feelings may change in light of the very close

relationship she has with two people who have been

prosecuted.” The trial court concluded by saying “it is a

reasonable race neutral reason to strike anyone who has a

close relative who has been prosecuted. So for that reason

based on my observation of the facts, I don’t believe a prima

facie case has been made.”

10 CURRIE V. MCDOWELL

Having already provided what it regarded as an

acceptable reason, the court then allowed Brown to articulate

his reasons. Brown stated that “some of those reasons were

exactly as stated by the court,” and then included Jones’s

“no” answer to question 10; Jones’s statement on the

questionnaire that she had family members who had used

crack; that it was a particularly close relative who had been

prosecuted; and Jones’s questionnaire comment that she

didn’t know what the defendant was “accused of” when the

court had described the charges to the jurors before having

them fill out the questionnaire. Currie’s counsel responded

that Jones’s answers to questions 10 and 21 were not

inconsistent if her family member had been arrested but not

charged.

The court reiterated that it denied the motion at the prima

facie case stage, and also stated that “the reasons provided are

race neutral and are not a sham or a pretext, but are the actual

reasons that Mr. Brown exercised the peremptory challenge.”

It then continued the trial, which resulted in Currie’s

conviction.1

D. Currie’s appeal in state court

Currie raised his Batson challenge on direct appeal in the

California Court of Appeal. The Court of Appeal held that

the state trial court had correctly applied the Johnson standard

1

After conviction, Currie moved for a new trial based on the claimed

Batson violation as well as other claims. The court denied the motion,

reaffirming that “no prima facie case had been shown.” The court

reiterated its reasons for that finding and added new reasons not suggested

by Brown; the state appellate court did not rely on these reasons or even

mention them. We therefore do not discuss those reasons here.

CURRIE V. MCDOWELL 11

in its holding that there was no prima facie case under Batson.

The court stated that “we will affirm the ruling where the

record suggests grounds upon which the prosecutor might

reasonably have challenged the jurors in question,” and found

that “[s]ubstantial evidence supports the trial court’s stated

conclusion that Juror J[ones] was not a desirable panelist for

the prosecution because she had two relatives who had been

arrested for drug offenses, and that consequently, no prima

facie case had been made.”

The court said that it did not need to engage in

comparative juror analysis, disagreeing with Currie that the

trial court’s analysis of Brown’s stated reasons transformed

the Batson analysis from stage one to stage three. It noted

that, were it to treat the case as presenting a stage-three

Batson analysis, it would affirm the trial court’s holding as

based on substantial evidence anyway, as it would accord

significant deference to the trial court’s factual findings were

it to engage in a comparative juror analysis. The court then

did engage in a limited comparative analysis, examining only

the seated jurors’ responses to questions regarding crime and

drug use among their families and friends. “Drug use did not

appear to be nearly as pervasive in the social circles of the

seated jurors,” the court found, and so Brown “could quite

reasonably differentiate between [Jones’s] responses and

those of the seated jurors.” The court affirmed the trial

court’s rejection of Currie’s Batson claim. The Supreme

Court denied Currie’s petition for review in a single-sentence

disposition, citing no cases and giving no reasons for the

denial.

12 CURRIE V. MCDOWELL

E. Federal habeas proceedings

Currie filed a petition for a writ of habeas corpus in the

Northern District of California. The district court dismissed

all but two of Currie’s claims as unexhausted, allowing

Currie’s Batson claim and one other claim to move forward.

Citing Hernandez v. New York, 500 U.S. 352, 359 (1991)

(plurality opinion), the district court moved directly to the

question whether Brown had engaged in purposeful

discrimination under Batson step three. The court applied the

deferential standard of 28 U.S.C. § 2254(d)(2), finding that

the state court of appeal “was not objectively unreasonable in

concluding that substantial evidence supported the trial

court’s finding that the prosecutor did not excuse Juror

[Jones] based on her race.” The court denied both of Currie’s

claims for habeas relief, and certified only the Batson claim

for appealability.

II. The Standard of Review

This Court reviews a district court’s legal determinations

denying habeas relief de novo. Crittenden, 624 F.3d at 950.

Review of the challenged state court decision is governed by

28 U.S.C. § 2254, which accords a statutory presumption of

correctness. Tolbert v. Page, 182 F.3d 677, 685 (9th Cir.

1999) (en banc).2 For habeas petitions alleging a Batson

violation, “our standard is doubly deferential: unless the state

appellate court was objectively unreasonable in concluding

that a trial court’s credibility determination was supported by

2

The district court correctly chose the last reasoned state court decision

as the decision to review — in this case, the California Court of Appeal’s

decision. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991); Shackleford v.

Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).

CURRIE V. MCDOWELL 13

substantial evidence, we must uphold it.” Jamerson v.

Runnels, 713 F.3d 1218, 1225 (9th Cir. 2013) (quoting Briggs

v. Grounds, 682 F.3d 1165, 1170 (9th Cir. 2012)).

This deference does not apply where the state court’s

decision is contrary to or based on an unreasonable

application of “clearly established Federal law.” 28 U.S.C.

§ 2254(d)(1); Panetti v. Quarterman, 551 U.S. 930, 948

(2007). Here, the state appellate court violated clearly

established Federal law in its Batson step one analysis by

affirming because “the record suggest[ed] grounds upon

which the prosecutor might reasonably have challenged the

jurors in question,” whether or not those were the reasons

proferred. “[T]he existence of grounds upon which a

prosecutor could reasonably have premised a challenge does

not suffice to defeat an inference of racial bias at the first step

of the Batson framework.” Johnson v. Finn, 665 F.3d 1063,

1069 (9th Cir. 2011) (emphasis added) (internal quotation

marks omitted). That principle “was clearly established” for

AEDPA purposes in 2005 — years before Currie’s retrial —

by the Supreme Court’s decision in Johnson v. California.

Id. Johnson noted that “[t]he Batson framework is designed

to produce actual answers to suspicions and inferences that

discrimination may have infected the jury selection process,”

545 U.S. at 172 (emphasis added), and quoted with approval

our statement in Paulino v. Castro, 371 F.3d 1083, 1090 (9th

Cir. 2004) that “[i]t does not matter that the prosecutor might

have had good reasons . . . [;][w]hat matters is the real reason

they were stricken.” Id.

The state appellate court proceeded, however, to engage

in a Batson step-three analysis as an alternate ground for

affirming the state trial court. Considering the state appellate

court’s prior legal error, whether we should examine only this

14 CURRIE V. MCDOWELL

alternative holding and apply AEDPA deference, as the

district court did, is a debatable question.3 But it is a question

we need not decide, for even examining the holding under

AEDPA’s doubly deferential standard, we hold that the state

court’s Batson step three analysis was “based on an

unreasonable determination of the facts in light of the

evidence presented.”4 28 U.S.C. § 2254(d)(2).5

3

The district court justified moving directly to the Batson step three

analysis by citing Hernandez v. New York, 500 U.S. 352, 359 (1991)

(plurality opinion), which states that the issue of a prima facie showing is

moot once the prosecutor’s race-neutral explanation is in the record. It is

not clear, however, that Hernandez applies here. In Hernandez, the

prosecutor responded to a Batson motion by defending his peremptory

strike “without any prompting or inquiry from the trial court.” Id. Here,

in contrast, the state trial court initially provided potential reasons that the

prosecutor then adopted. But the Supreme Court has clearly stated that the

goal of the Batson procedure is to uncover “the reasons the prosecutor

actually harbored for a peremptory strike.” Johnson v. California,

545 U.S. at 172 (emphasis added) (citation and internal quotation marks

omitted). The fact that the prosecutor’s stated reasons were supplied in

large part by the court itself means that applying Hernandez here would

be in considerable tension with Johnson v. California.

4

The Supreme Court has declined to decide whether § 2254(d)(2)

applies when considering a third-stage Batson claim under AEDPA, or

whether § 2254(e)(1)’s “clear and convincing evidence” standard applies.

See Rice v. Collins, 546 U.S. 333, 338–39 (2006); Murray v. Schriro,

745 F.3d 984, 1001 (9th Cir. 2014) (collecting cases). This Court has

previously decided to apply 2254(d)(2) where, as here, the relevant

evidence is entirely in the record. See Ali v. Hickman, 584 F.3d 1174,

1180 n.4 (9th Cir. 2009). That is the approach we take here.

5

We disagree with the dissent’s assertion that it was not clearly

established Supreme Court law that courts cannot excuse a potential

Batson violation based on hypothetical justifications on which a

prosecutor could have premised a challenge. See Johnson, 545 U.S. at

172; Finn, 665 F.3d at 1069. But even if the dissent is correct as to

Johnson and Finn, because we have conducted our analysis under

CURRIE V. MCDOWELL 15

III. Discussion

To determine, at stage three, whether a prosecutor’s

professed race-neutral reasons for striking a juror were

pretextual, Batson requires an inquiry into “the totality of the

relevant facts about a prosecutor’s conduct.” Kesser v.

Cambra, 465 F.3d 351, 359 (9th Cir. 2006) (en banc)

(quoting Miller-El v. Dretke, 545 U.S. 231, 239 (2005)).

Here, Brown’s history of Batson violations is one such

relevant fact. In Miller-El v. Cockrell, 537 U.S. 322, 347

(2003), the Supreme Court used the fact that prosecutors

belonged to a district attorney’s office with a history of racial

bias to bolster its finding of a prima facie case. In this

instance, it is not only the same office, but the same

prosecutor, who brings a history of Batson violations with

him.

In addition, we find it troubling that Brown’s explanations

for the strike were largely adopted from reasons the trial

judge had already suggested, during his discussion of Batson

step one. Ordinarily, we give significant deference to a trial

judge’s assessment of a prosecuting attorney’s credibility.

See Batson, 476 U.S. at 98 n.21. But where a trial court

offers reasons before the prosecutor has spoken, it

undermines the court’s ability to assess that credibility. First,

where the prosecutor has been supplied with reasons, the

court will have less opportunity to put him or her to the task

of articulating his own reasons in his own words. When the

prosecutor already knows that a reason will be accepted

because the court itself has approved it, the court’s chance to

perceive active dissembling because of an uncertain or

AEDPA’s doubly deferential standard, the outcome of the case would be

unaffected.

16 CURRIE V. MCDOWELL

unconvincing explanation diminishes. Second, where a trial

judge has already suggested a given explanation, he or she

may naturally subject that explanation to less scrutiny than

when it is offered by someone else.

With these considerations in mind, we turn to the race-

neutral reasons Brown provided to justify striking Jones.

First, Brown noted that Jones had several relatives who had

used drugs, including two particularly “close relation[s]” (a

brother and cousin) who had been arrested for drug offenses.

Second, Jones had given inconsistent statements regarding

these family members on her questionnaire. Third, Jones said

that she did not know what Currie was accused of, even

though the charges had been read to her. The record refutes

each of these explanations.

1. Jones’s family members

Jones marked “yes” to the question “[h]ave you, anyone

in your family, any close friends, co-workers, or other contact

had a drug problem?” She explained that “several family

members have [sic] crack before.” The questionnaire asked

how this problem had affected her and others, and Jones

wrote “it made me value life and the beautiful things it has to

offer me. Because I grew up around it, I know what not to

do. I choice [sic] to make the right choices.” In an earlier

question about her feelings and attitudes regarding illegal

drugs, Jones remarked “to each his own. It’s very sad to see

people go through rough times with drug use, but it is their

own choice. They are still human even given their struggles.”

The state appeals court relied heavily on Jones’s

statements about her family members in rejecting Currie’s

Batson claim; it was the only one of Brown’s reasons that the

CURRIE V. MCDOWELL 17

court discussed during its comparative juror analysis. The

appeals court found that Jones’s

situation was different [from the other

potential jurors], in that she had “several”

family members who had a problem with

crack cocaine, and a very close family

member (a brother) who had been arrested for

a drug related offense. She also stated in her

questionnaire that she had ‘friends’ who had

been arrested for the same reason. Drug use

did not appear to be nearly as pervasive in the

social circles of the seated jurors, and the

prosecutor could quite reasonably

differentiate between her responses and those

of the seated jurors.

The appeals court’s conclusion is unreasonable in light of

the evidence before it. Juror 35, in particular, had personally

struggled with marijuana, cocaine, and methamphetamine to

such an extent that he suffered “multiple gran mal seizures”

and “did not drive for appx 6 years.” Regarding his “feelings

and attitudes about the use of illegal drugs,” he put only one

word — “empathetic.” Despite these statements, Juror 35

was seated. The state appeals court minimized this juror’s

vivid description of his experience, saying only that he “had

tried drugs when he was in his twenties.” The seating of

Juror 35 severely undercuts Brown’s rationale, relied on by

both the state appeals court and state trial court, that Jones

was struck because of the closeness of her relationship with

a drug user.

Moreover, the more general finding that “[d]rug use did

not appear to be nearly as pervasive in the social circles of the

18 CURRIE V. MCDOWELL

seated jurors” is an unreasonable determination of the facts,

given that half of the seated jurors had relatives with drug

problems and that several of those jurors listed multiple

individuals in their lives who had had very serious drug

issues: a sister-in-law who left her husband due to drugs; a

nephew’s wife who “died from drug abuse;” an alcoholic

mother; a cousin addicted to cocaine for many years; a niece

who is “in and out of drug rehab”; and a niece with a drug

problem who “is mentally ill today.” Some of these seated

jurors, like Juror 35, made explicit statements of sympathy

for those who used illegal drugs. The seating of all these

jurors further undermines the plausibility of the notion that

Brown was particularly concerned about seating jurors who

might be sympathetic to a defendant whose crime involved

purchasing drugs.

2. Jones’s allegedly inconsistent statements about her

family members.

Jones’s questionnaire asked whether she, “a family or

household member, or close friend [had] been a victim,

witness or defendant in a criminal matter.” Jones answered

“no.” Her answer to another question, however, indicated

that she had friends and family members who had been

arrested.

The state court held this supposed inconsistency a

legitimate race-neutral reason. But these answers are not

necessarily inconsistent. If Jones’s family member had been

arrested but not charged with a crime, for instance, these two

answers would be wholly compatible. The questionnaire

even covers this possibility, asking not only whether a friend

or family member had been arrested but also whether charges

were filed. Jones clearly marked “no” to this second

CURRIE V. MCDOWELL 19

question. Nothing in the voir dire testimony shows that these

answers were false or could reasonably have been viewed as

inconsistent.6

More importantly, comparative juror analysis strongly

suggests this concern was pretextual. Five of the non-black

panelists who ended up being sworn jurors displayed the

same pattern in answering these two questions. Hence, the

“prosecutor’s proffered reason for striking a black panelist

applies just as well” to these non-black panelists. Miller-El v.

Dretke, 545 U.S. at 241. Although this pattern in the answers

of the non-black panelists was in the record, neither the

district court nor the state court mentioned them.

3. Jones’s statement that she did not know what

Currie was accused of

Brown also said he struck Jones because she stated on her

questionnaire that she didn’t know what Currie “is accused

of,” even though the trial judge had informed the potential

jurors of the charges. But Jones’s statement that she didn’t

know what Currie “is accused of” is unremarkable even in

light of the trial court’s instructions.

The trial court told the prospective jurors the formal

charges —“second degree murder, attempted robbery and

felon in possession of a firearm.” It did not go into any detail

6

During voir dire when the judge asked Jones about “your family

members who have been in the criminal justice system,” Jones stated that

“my brother was out of Alameda County about six years ago.” It would

be possible to interpret that statement to mean that Jones’s brother was

incarcerated in Alameda County at some point. But that does not mean

that he was charged with or convicted of a crime; he could have been in

detention at an Alameda County jail after an arrest.

20 CURRIE V. MCDOWELL

at all about what Currie was alleged to have done — who he

allegedly robbed or murdered, or where, why, or how he did

so. And, when it announced the charges, the court

specifically admonished the jurors that they should not talk

about the case with other people, “even though you don’t

know anything about it.”

After the trial court had made such a statement, and in the

context of a question about the presumption of innocence,

Jones’s statement “I don’t know what [he] is accused of” was

entirely innocuous. Jones did not know any of the specific

factual allegations involved. It would be natural and coherent

for a person to say, for instance, “I know the defendant is

charged with mail fraud, but for all I know he could be

accused of lying to his mother or of running an international

pyramid scheme.” “Accuse” and “charge” may be

synonymous in a technical sense, but this does not mean that

Jones’s statement, in context, would reasonably cause anyone

to doubt her competence or lack of bias. Brown, moreover,

had an opportunity to ask Jones about this inconsistency

during voir dire, when Jones stated that she didn’t “know the

first thing of the case.” But he did not. Such a “failure to

engage in any meaningful voir dire examination on a subject

the State alleges it is concerned about is evidence suggesting

that the explanation is a sham and a pretext for

discrimination.” Miller-El v. Dretke, 545 U.S. at 246

(quoting Ex parte Travis, 776 So.2d 874, 881 (Ala. 2000)).

We therefore conclude that it was unreasonable for the state

court to accept this reason as a valid race-neutral explanation

for Jones’s removal.

***

CURRIE V. MCDOWELL 21

In sum, the record contains clear indications that each of

Brown’s reasons for striking Juror Jones was a pretext, and it

was unreasonable for the state court to hold otherwise. The

state court unreasonably downplayed a seated juror’s personal

experience with drugs and the many other jurors who had ties

to individuals with tragic drug-related experiences. Jones’s

alleged inconsistency in two questionnaire questions was not,

in fact, an inconsistency at all, and five of the seated jurors

had answered the questionnaire identically. And Jones’s

statement that she did not know what Currie was accused of

is entirely understandable and not reasonable grounds to

doubt her abilities as a juror.

Even if the state appeals court had not erred in its

acceptance of one of these reasons, it unreasonably

determined the facts by analyzing only one of Brown’s

justifications — that Jones had close relatives who had used

drugs — for pretext. A court does not need to find all of a

prosecutor’s race-neutral reasons pretextual to find

impermissible racial discrimination. See Kesser, 465 F.3d at

360. The relevant inquiry for Batson purposes is whether

“race was a substantial motivating factor.” Cook, 593 F.3d at

815; see also Snyder, 552 U.S. at 485. If a prosecutor

supplies enough reasons for a strike, it may well be likely that

one of those reasons is plausible. But it remains the case that

implausible justifications “may (and probably will) be found

to be pretexts for purposeful discrimination.” Miller-El v.

Cockrell, 537 U.S. at 339 (quoting Purkett v. Elem, 514 U.S.

765, 768 (1995)). Courts applying the Batson procedure

therefore cannot stop investigating after finding one of a

prosecutor’s multiple proferred reasons plausible. As is

evident here, finding multiple other reasons to be pretextual

22 CURRIE V. MCDOWELL

may well lead to the conclusion that the prosecutor’s strike

was discriminatory.7

IV. Conclusion

Brown’s history of Batson violations and pretextual

reasons in this case lead us to conclude that “race was a

substantial motivating factor” for his strike of Jones. Cook,

593 F.3d at 815. The California Court of Appeal’s rejection

of Currie’s Batson claim was based on an unreasonable

determination of the facts, as it largely ignored the similar

extent of drug use in Jones’s social circles and those of the

empaneled jurors, and it uncritically accepted Brown’s other

stated reasons. We therefore conclude that the district court

erred in rejecting Currie’s habeas petition. We reverse, and

remand with instructions to issue a conditional writ of habeas

corpus requiring Currie’s release from custody unless the

State elects to retry Currie within a reasonable time period to

be determined by the district court.

REVERSED and REMANDED.

BEA, Circuit Judge, dissenting:

Aldridge Currie has been twice tried and twice convicted

for the murder of Santos Maldonado. The California Court of

Appeal did not unreasonably apply “clearly established

7

It is also for this reason, among others, that we are unpersuaded by the

dissent. The dissent emphasizes a single reason for striking Jones — her

family members with a history of drug-related arrests — and, finding it

plausible, overlooks the rest of the troubling evidence in the record.

CURRIE V. MCDOWELL 23

Federal law, as determined by the Supreme Court of the

United States”, when it affirmed Currie’s conviction

following his retrial in 2008. 28 U.S.C. § 2254(d)(1).

Furthermore, the court’s decision was not “based on an

unreasonable determination of the facts in light of the

evidence” before it. Id. § 2254(d)(2). Accordingly, Currie’s

habeas petition “shall not be granted.” Id. § 2254(d). Since

federal courts are statutorily barred from granting Currie’s

habeas petition, I would affirm the district court’s denial of

his petition.

I.

Currie killed his drug dealer, Maldonado, on the night of

July 12, 1995. That night, Currie first asked Maldonado for

methamphetamine, and Maldonado offered to sell some.

Currie then walked away from Maldonado for a few minutes.

Currie came back with a gun and fatally shot Maldonado in

the neck. According to one witness, Currie took drugs and

money out of Maldonado’s pockets before fleeing the scene.

According to another witness, Currie appeared desperate to

get drugs. Currie smoked drugs that night, and according to

a toxicologist there was cocaine and methamphetamine in

Maldonado’s blood at the time of his death. At trial, Currie

testified that he killed Maldonado because they argued about

a gun that night and Currie believed that Maldonado was

going to shoot him. The jury also heard that Currie had

previously been convicted of possessing and transporting

drugs.

II.

This appeal concerns the constitutionality of the jury

selection process during Currie’s retrial in California state

24 CURRIE V. MCDOWELL

court. During the first round of jury selection, the prosecutor

struck four prospective jurors, none of whom was African

American. The trial court moved on to the second round of

prospective jurors. Juror Jones was a member of this second

group. The trial judge questioned Juror Jones about arrests of

her close family members, and Jones stated that both her

brother and her cousin had been arrested for suspected drug

crimes. The prosecutor struck Juror Jones from the panel.

This was the first and only time that the prosecutor struck an

African American juror from the jury that retried Currie.

There was one other African American prospective juror in

the venire, but a full jury was impaneled before the parties

had a chance to question her.

Currie’s counsel raised an objection to the Jones strike

based on Batson v. Kentucky, 476 U.S. 79 (1986), and moved

for a mistrial. Defense counsel told the trial judge that he did

not believe the prosecutor had “any basis whatsoever” to

strike Jones, other than her race. The judge stated that he was

“aware that striking a single person of a minority background

is sufficient for a prima facie showing if the evidence gives

rise to a reasonable inference that it is based on ra[c]e rather

than on nonprohibited grounds.” After hearing from defense

counsel and the prosecutor, the trial judge concluded that

based on his observation of the facts no prima facie showing

of racial discrimination had been made. The judge observed

that there was “a very reasonable basis” to strike someone

like Juror Jones because “Jones’ brother has been prosecuted

on drug cases . . . [and] her cousin was prosecuted on drug

cases.” The judge said he did not “believe that the prosecutor

is required to take the risk that either subconsciously or

during the presentation of evidence her feelings” might make

her biased against Currie’s prosecutor “in light of the very

close relationship she has with two people who have been

CURRIE V. MCDOWELL 25

prosecuted.” The judge apparently was referring to the arrests

of Jones’ brother and cousin for suspected drug crimes,

although it is not clear whether those arrests led to

prosecutions.

After concluding that defense counsel failed to make a

prima facie showing of discrimination, the trial judge next

invited the prosecutor to state for the record any reasons why

he struck Juror Jones. The prosecutor obliged and first agreed

with the court’s reasoning as to the possible effect on Jones

of her close family’s drug arrest record. Next, the prosecutor

pointed out that Jones had answered “no” on a questionnaire

that asked if a family member had been a defendant in a

criminal matter and then answered “yes” to a question about

whether one of her family members had been arrested. The

prosecutor apparently considered these answers to be

inconsistent, even though they are not necessarily

irreconcilable since one referred to criminal prosecutions and

the other referred merely to arrests. The prosecutor also

pointed out that in response to a question regarding whether

any of her family members “had a drug problem,” Jones had

answered “yes” and written “several family members have

crack before” [sic]. Finally, the prosecutor pointed out that

Jones wrote on a questionnaire that she did not know what the

defendant was accused of, even though the trial judge had

already advised Jones and other prospective jurors that the

defendant was charged with second degree murder and other

crimes. The prosecutor then reemphasized that Jones had “a

close relation such as a brother” potentially involved in a

suspected drug crime.

The trial judge reiterated that he denied the motion based

on the absence of a prima facie showing of discrimination.

The judge also said that be believed that the prosecutor’s

26 CURRIE V. MCDOWELL

stated reasons were not pretextual. The trial proceeded. Currie

was convicted, again, of second degree murder, attempted

robbery, and being a felon in possession of a firearm.

Currie appealed his conviction to the California Court of

Appeal. People v. Currie, No. A123708, 2011 WL 63083

(Cal. Ct. App. Jan. 10, 2011), as modified on denial of reh’g

(Jan. 31, 2011). He argued that the trial court’s denial of his

Batson motion violated his constitutional rights. According to

Currie, the trial court applied the wrong legal standard at

Batson’s first, prima facie step by supposedly requiring him

to show that it was “more likely than not” that the prosecutor

struck Jones because of her race. The appellate court rejected

this argument because the trial judge never mentioned a

“more likely than not” standard, and because the trial judge

required only that Currie proffer evidence that “gives rise to

a reasonable inference” that the challenged strike was

motivated by race. The appellate court went on to hold that

“[s]ubstantial evidence supports the trial court’s stated

conclusion that [Jones] was not a desirable panelist for the

prosecution because she had two relatives who had been

arrested for drug offenses, and that consequently, no prima

facie case had been made.” Id. at *7.

Currie argued that the appellate court was obligated to

undertake a comparative analysis among Jones and the seated

jurors. The appellate court rejected this argument because the

trial judge applied the correct legal standard during the prima

facie step and explicitly found that Currie failed to show that

there was a reasonable inference that the prosecutor was

motivated by race. The appellate court went on to perform a

comparative analysis anyway, and it concluded that

“[s]ubstantial evidence supports the trial court’s finding that

the prosecutor did not excuse [Jones] based on her race.” Id.

CURRIE V. MCDOWELL 27

at *10. The appellate court affirmed Currie’s conviction. Id.

at *20.

Currie filed a petition for review in the Supreme Court of

California, which was denied without opinion. He filed the

instant petition for writ of habeas corpus in federal district

court, which raises the same Batson claim. The district court

denied the habeas petition. On appeal to us, he argues that the

court erred when it denied his petition.

III.

Our review of Currie’s habeas petition is limited in scope

by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). Under AEDPA, a habeas petition “on behalf of

a person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless

the adjudication of the claim–(1) resulted in a decision that

was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States; or (2) resulted in a

decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(1)–(2). Here, the California

Court of Appeal adjudicated Currie’s Batson claim on the

merits, and Currie raises the same Batson claim in his federal

habeas petition. AEDPA bars federal courts from granting

Currie’s petition unless the California Court of Appeal

unreasonably applied clearly established Federal law or based

its decision on factual determinations that are unreasonable in

light of the evidence before it.

28 CURRIE V. MCDOWELL

IV.

A.

We are called upon to ascertain the “clearly established

Federal law, as determined by the Supreme Court of the

United States” with respect to Batson challenges.

The Supreme Court of the United States explained the

proper analysis for Batson claims in Johnson v. California,

545 U.S. 162 (2005) [hereinafter Johnson]. In Johnson, a

prosecutor struck three African American jurors. Id. at 165.

Defense counsel raised a Batson objection after the first two

strikes. Id. The trial judge warned that “we are very close” to

establishing a prima facie Batson case, but the judge

concluded that no such case had been established because

there was not a “strong likelihood” that the strikes were

motivated by race. Id. The judge “simply found that [the

defendant] had failed to establish a prima facie case” and did

not ask the prosecutor to explain the rationale for the strikes.

Id. Then, the prosecutor struck the third African American

juror, and defense counsel objected again and argued that the

prosecutor was engaging in “a systematic attempt to exclude

African-Americans from the jury panel.” Id. The trial judge

opined “that the black venire members had offered equivocal

or confused answers in their written questionnaires.” The

judge said “there were answers . . . at least on the

questionnaires themselves [such] that the Court felt that there

was sufficient basis” for the strikes. Id. at 165–66. The judge

concluded that the defendant failed to establish a prima facie

case and did not ask the prosecutor for an explanation. Id. at

165–66.

CURRIE V. MCDOWELL 29

The defendant pursued a direct appeal to the Supreme

Court of the United States. The Court identified the following

issue and standard:

The issue in this case is narrow but

important. It concerns the scope of the first of

three steps this Court enumerated in Batson,

which together guide trial courts’

constitutional review of peremptory strikes.

Those three Batson steps should by now be

familiar. First, the defendant must make out a

prima facie case “by showing that the totality

of the relevant facts gives rise to an inference

of discriminatory purpose.” Second, once the

defendant has made out a prima facie case, the

“burden shifts to the State to explain

adequately the racial exclusion” by offering

permissible race-neutral justifications for the

strikes. Third, “[i]f a race-neutral explanation

is tendered, the trial court must then decide

. . . whether the opponent of the strike has

proved purposeful racial discrimination.”

Id. at 168 (citations omitted).

The Court rejected the standard then used by California

courts at the first step of Batson, which required a defendant

to show that it was “more likely than not” that the prosecutor

exercised a peremptory strike based on race. Id. This standard

asked too much of defendants. “Instead, a defendant satisfies

the requirements of Batson’s first step by producing evidence

sufficient to permit the trial judge to draw an inference that

discrimination has occurred.” Id. at 170.

30 CURRIE V. MCDOWELL

The Court applied this standard to the facts of Johnson. It

noted that the state supreme court observed it was

“suspicious” that three African American jurors were

removed from the jury, and that the trial judge said “we are

very close” to a prima facie Batson case after the prosecutor

twice struck African American jurors. The Court held that

“[t]hose inferences that discrimination may have occurred

were sufficient to establish a prima facie.” Id. at 173.

In reviewing habeas petitions, we have relied on the

Court’s holding in Johnson to determine whether a state court

decision “involved an unreasonable application of clearly

established Federal law, as determined by the Supreme Court

of the United States.” 28 U.S.C. § 2254(d)(1). For instance,

in Williams v. Runnels, 432 F.3d 1102 (9th Cir. 2006), we

held that the California Court of Appeal applied the wrong

legal standard because it failed to recognize that the

defendant’s Batson objection was “only required to raise an

inference of purposeful discrimination” to pass muster at step

one, id. at 1110. The prosecutor in Williams used peremptory

challenges to excuse three African American jurors. Id. at

1103. The defendant objected, and the trial judge summarily

concluded that the defendant failed to establish a prima facie

case of discrimination. Id. at 1104. The trial judge did not

explain this finding and did not ask the prosecutor to provide

an explanation. Id. The California Court of Appeal affirmed

the trial court. Id. It held that “from all the circumstances of

the case,” the defendant had not shown “a strong likelihood

that such persons are being challenged because of their group

association.” Id. Thus, the state appellate court plainly

applied the wrong legal standard when it reviewed the

defendant’s Batson claim. In light of this critical flaw, we

noted that “where the state court used the ‘strong likelihood’

standard for reviewing a Batson claim, the state court’s

CURRIE V. MCDOWELL 31

findings are not entitled to deference and our review is de

novo.” Id. at 1105 (citing Paulino v. Castro, 371 F.3d 1083,

1090 (9th Cir. 2004)). Applying de novo review, we

determined for ourselves whether the defendant had raised an

inference of purposeful discrimination at step one of Batson.

We found that the prosecutor’s use of peremptory strikes

against three African American jurors raised such an

inference, and we did not believe that this inference was

refuted by the state appellate court’s post-hoc rationalization

that the trial court record “could have” supported race-neutral

reasons for the strikes. Id. at 1110. The state appellate court

was confined to hypothesizing potential race-neutral reasons

to justify the strike because the trial judge denied the Batson

motion at step one without explanation.

We revisited Batson’s step one analysis in Johnson v.

Finn, 665 F.3d 1063 (9th Cir. 2011) [hereinafter Finn]. A

state prosecutor exercised peremptory strikes against three

African American jurors, and the defendants objected on

Batson grounds. Id. at 1066. The trial judge found that the

defendants failed to make out a prima facie case of

discrimination. Id. The California Court of Appeal affirmed

the trial court. Id. at 1068. The defendants raised the Batson

claim in a federal habeas petition. Id. In reviewing the

petition, we first analyzed whether the California Court of

Appeal applied the proper legal standard when it adjudicated

the Batson claim on the merits. Id.

As in Williams, we again held that the state court applied

the wrong legal standard. Id. In applying step one of Batson,

the California Court of Appeal relied on People v. Box,

23 Cal. 4th 1153 (2000). Box stated that “in California, a

‘strong likelihood’ means a ‘reasonable inference.’” Id. at

1188 n.7. By relying on Box, the state appellate court in Finn

32 CURRIE V. MCDOWELL

failed to apply the legal standard followed by the United

States Supreme Court in Johnson. In Johnson, the Court

explicitly rejected California’s “strong likelihood” standard

at Batson step one. Johnson, 545 U.S. at 166. In reviewing

the proceedings at issue in Finn, we held that “[a] state court

that equates a correct standard with an incorrect standard

cannot be applying the correct standard in the manner

required by law.” Finn, 665 F.3d at 1068. We went on to note

that there was “strong[] evidence” that the state appellate

court applied the incorrect “strong likelihood” standard. Id.

This “evidence” was that the state appellate court wrote that

it would affirm the trial judge’s step one Batson ruling so

long as “there are grounds upon which a prosecutor could

reasonably have premised a challenge.” Id. This statement

was in tension with Williams v. Runnels, in which we

reviewed a Batson claim de novo and opined that “to rebut an

inference of discriminatory purpose based on statistical

disparity, the ‘other relevant circumstances’ must do more

than indicate that the record would support race-neutral

reasons for the questioned challenges.” Williams, 432 F.3d at

1108.

Because the state appellate court applied the wrong legal

standard in Finn, we proceeded to review the Batson claim de

novo. Finn, 665 F.3d at 1070. We wrote that “[t]he fact that

three of the prosecution’s peremptory challenges were

exercised against the only three African-Americans in the

jury pool is enough to establish a prima facie case of racial

discrimination.” Id. (internal quotation marks omitted). We

held, on de novo review, that the defendants did make a

prima facie showing of racial discrimination at Batson step

one. Id. at 1071.

CURRIE V. MCDOWELL 33

Before proceeding to analyze the California Court of

Appeal decision in this case, it is worth summarizing the

foregoing authorities: In Johnson, the Supreme Court rejected

California’s “strong likelihood” standard at Batson step one.

“Instead, a defendant satisfies the requirements of Batson’s

first step by producing evidence sufficient to permit the trial

judge to draw an inference that discrimination occurred.”

Johnson, 545 U.S. at 170. In Williams, we concluded that the

state appellate court misapplied clearly established Federal

law because it used the “strong likelihood” standard at Batson

step one. Williams, 432 F.3d at 1105. We proceeded to

analyze the Batson claim de novo. Id. Similarly, in Finn, we

concluded that the state appellate court misapplied clearly

established Federal law because it relied on a California case

that equated the“reasonable inference standard” with the

incorrect “strong likelihood” standard. Finn, 665 F.3d at

1068. Thus, we proceeded to analyze that Batson claim de

novo as well. Id.

B.

Here, the California Court of Appeal’s adjudication of

Currie’s Batson claim did not “result[] in a decision that was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). Unlike the proceedings we reviewed in

Williams and Finn, here there is “strong evidence” that the

state court was aware of, and applied, the inference standard

from Johnson v. California. This evidence principally

consists of the fact that the state appellate court cited, quoted,

and discussed Johnson when it adjudicated Currie’s step one

Batson claim. The appellate court noted that “[i]n Johnson,

the high court clarified that the first prong of Batson is

34 CURRIE V. MCDOWELL

satisfied where the record supports an ‘inference’ of

discrimination, and rejected California decisions requiring

proof of a ‘strong likelihood’ of discrimination.” People v.

Currie, No. A123708, 2011 WL 63083, at *7 (Cal. Ct. App.

Jan. 10, 2011), as modified on denial of reh’g (Jan. 31, 2011).

Furthermore, the appellate court observed that “[t]he trial

court here was well aware of Johnson (which was decided

three years before the voir dire in this case) and specifically

articulated the ‘inference’ standard when ruling on the

[Batson] motion.” Id. This observation is supported by the

record before the appellate court, which shows that the judge

said he was “aware that striking a single person of a minority

background is sufficient for a prima facie showing if the

evidence gives rise to a reasonable inference that it is based

on ra[c]e rather than on nonprohibited grounds.” These facts

support only one conclusion: the California Court of Appeal

reasonably applied “clearly established Federal law, as

determined by the Supreme Court of the United States” when

it adjudicated Currie’s step one Batson claim.

C.

My colleagues in the majority see things differently. They

conclude that the California Court of Appeal violated clearly

established Federal law, as determined by the Supreme Court.

The majority supports this conclusion not with a Supreme

Court case, but with our discussion in Finn. However, the

Ninth Circuit does not speak for the Supreme Court. When

we review habeas petitions subject to AEDPA, “[w]e must

keep in mind that ‘only the Supreme Court’s holdings are

binding on the state courts and only those holdings need be

reasonably applied.’” Murray v. Schriro, 745 F.3d 984, 997

(9th Cir. 2014) (quoting Clark v. Murphy, 331 F.3d 1062,

1069 (9th Cir. 2003), overruled on other grounds by Lockyer

CURRIE V. MCDOWELL 35

v. Andrade, 538 U.S. 63, 71 (2003)). “Our precedent cannot

be mistaken for clearly established Supreme Court law.” Id.

(citing Marshall v. Rodgers, 133 S. Ct. 1446, 1450–51

(2013)).

The majority points to our statement in Finn that the

California Court of Appeal apparently applied the wrong

standard at Batson step one in part because the appellate court

said it would affirm a trial court’s step one ruling “so long as

‘there are grounds upon which a prosecutor could reasonably

have premised a challenge.’” Finn, 665 F.3d at 1068. In the

present case, my colleagues point out, the California Court of

Appeal quoted a California case stating that an appellate court

“will affirm the ruling where the record suggests grounds

upon which the prosecutor might reasonably have challenged

the jurors in question.” People v. Hoyos, 41 Cal. 4th 872, 900

(2007). Thus, similar language appears in both the challenged

decision in the present case and in the challenged decision

under review in Finn. Given this shared language, my

colleagues conclude that since the California Court of Appeal

acted contrary to Federal law in Finn, it did so here as well.

The majority’s analysis is incorrect for three reasons.

First, Finn did not hold that the appellate court’s

statement established that the court acted contrary to Federal

law. There was a much bigger problem with the appellate

court’s decision: it relied on People v. Box, 23 Cal. 4th 1153

(2000), which incorrectly conflated the “reasonable

inference” standard with California’s “strong likelihood”

standard. This is the primary reason in Finn why we

concluded that the state court acted contrary to Federal law.

By contrast, here the state trial court and the California Court

36 CURRIE V. MCDOWELL

of Appeal relied on the “reasonable inference” standard from

Johnson. The courts did not rely on Box.

Second, Finn does not demonstrate that it is contrary to

clearly established Federal law, as determined by the

Supreme Court, for a state appellate court to affirm a step one

Batson ruling “so long as ‘there are grounds upon which a

prosecutor could reasonably have premised a challenge.’”

Finn, 665 F.3d at 1068. Finn is not a Supreme Court case,

and Finn did not rely on a Supreme Court case when it

criticized the appellate court’s rule statement. Instead, Finn

relied on Williams v. Runnels, which is a Ninth Circuit

decision.

In Williams, we reviewed a habeas petition de novo and

determined that the California Court of Appeal “did not

adequately protect” a defendant’s rights under the Equal

Protection Clause when it ruled on a Batson claim by

focusing on “whether the [trial] record could support race-

neutral grounds for the prosecutor’s peremptory challenges.”

Williams, 432 F.3d at 1108. The Williams court arrived at this

conclusion based on its reading of Johnson. However,

Johnson itself does not spell out such a rule. Instead, the

Williams court refined the general principle from Johnson

into a specific legal rule that now applies to de novo review

of Batson claims in the Ninth Circuit. The Williams rule is not

“clearly established Federal law, as determined by the

Supreme Court.” We have been repeatedly reminded by the

Supreme Court not to treat our own precedent as Supreme

Court law. E.g., Lopez v. Smith, 135 S. Ct. 1, 4 (2014)

(“Circuit precedent cannot refine or sharpen a general

principle of Supreme Court jurisprudence into a specific legal

rule that this Court has not announced.”). The fact that we

reiterated the Williams rule in Finn does not change this

CURRIE V. MCDOWELL 37

analysis. We do not speak for the Supreme Court, even when

we say the same thing twice.

Third, even if it were contrary to clearly established

Federal law for an appellate court to pass on a Batson claim

simply because it could dream up “grounds upon which a

prosecutor could reasonably have premised a challenge,”

Finn, 665 F.3d at 1068, that is an inaccurate description of

what actually happened in Currie’s case. The California Court

of Appeal did not affirm Currie’s murder conviction by

imagining a possible rationale for striking Juror Jones.

Instead, the appellate court examined the trial record to

determine whether substantial evidence supported the trial

judge’s rationale for finding that Currie failed to establish a

prima facie case at Batson step one. Appellate courts typically

operate this way. They review findings of fact made by trial

courts for substantial evidence. Nothing about this approach

is contrary to “clearly established Federal law, as determined

by the Supreme Court.” My colleagues in the majority do not

offer much clarity as to what, exactly, a state appellate court

is allowed to do when it reviews a trial court’s Batson step

one finding–other than overturn it.

In sum, the California Court of Appeal did not

unreasonably apply Federal law when it adjudicated Currie’s

Batson claim. The appellate court applied the standard from

Johnson v. California, 545 U.S. 162 (2005), and nothing in

the record shows that it applied the Johnson standard

unreasonably or in a manner contrary to clearly established

Federal law, as determined by the Supreme Court of the

United States. 28 U.S.C. § 2254(d)(1).

38 CURRIE V. MCDOWELL

V.

A.

Our review of Currie’s federal habeas petition does not

end simply because the state appellate court applied the

correct legal standard. We must also consider whether the

California Court of Appeal’s adjudication of his Batson claim

“resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Here,

the determination under review is the California appellate

court’s conclusion that substantial evidence supported the

trial judge’s denial of the Batson motion at step one. The

appellate court had before it the voir dire transcript and the

questionnaires from jury selection. It determined that

“[s]ubstantial evidence supports the trial court’s stated

conclusion that [Jones] was not a desirable panelist for the

prosecution because she had two relatives who had been

arrested for drug offenses, and that consequently, no prima

facie case had been made.”

In assessing the reasonableness of the appellate court’s

determination, we are guided by Johnson. In Johnson, the

Supreme Court held on direct appeal that a prima facie case

had been made out where the prosecutor struck three African

American jurors, a tactic that the state courts themselves

described as “suspicious” and “very close” to a Batson

violation. Johnson, 545 U.S. at 173. The trial judge perceived

the Batson claim as a close call but concluded that no prima

facie case had been shown because the three African

American jurors had provided “confused answers in their

written questionnaires.” Id. at 165.

CURRIE V. MCDOWELL 39

Williams is also instructive. In Williams, the prosecutor

struck three African American jurors. Williams, 432 F.3d at

1103. The trial judge summarily denied the defendant’s

Batson motion without analysis and without seeking an

explanation from the prosecutor. Id. at 1104, 1108. We

reviewed the Batson claim de novo. We noted that the trial

judge’s summary handling of the motion limited our ability

to determine whether any relevant circumstances undermined

the inference of race discrimination. Id. at 1108. Our review

of the record “fail[ed] to disclose a refutation of the inference

of bias” raised by striking three African American jurors. Id.

at 1109. Thus, we determined that the defendant had made

out a prima facie case at Batson step one. Id.

Currie’s case is different.

The People of California sought to convict Currie, himself

a drug user, for murdering his drug dealer after the two got in

an argument. During jury selection, the trial judge heard from

Juror Jones that both her brother and her cousin had been

arrested for suspected drug crimes. Soon thereafter, the

prosecutor peremptorily struck Jones. This was the

prosecutor’s sixth peremptory strike, and his first and only

peremptory strike of an African-American juror from that

venire. Currie raised a Batson objection, and the trial judge

listened to Currie’s explanation of his objection. The trial

judge found that no prima facie case had been made. The trial

judge then explained his reasoning for the record: he believed

Jones could pose a risk to the state’s prosecution of a drug

user since her brother and cousin had been arrested for

suspected drug crimes. In light of this, the judge did not

believe that the prosecutor’s strike of Jones raised the

inference that the strike was motivated by the color of Jones’

skin.

40 CURRIE V. MCDOWELL

It was not unreasonable for the California Court of

Appeal to conclude that the inferential support for the

presence of racial animus to explain the peremptory challenge

of Jones was not as strong as the evidence in Johnson, in

which the trial judge observed that the prosecutor came “very

close” to violating Batson by striking three African American

jurors and the judge offered only a cursory explanation for

finding that no prima facie case had been made. See Johnson,

545 U.S. at 165 (“Specifically, the judge opined that the black

venire members had offered equivocal or confused answers

in their written questionnaires.”). By contrast, here the trial

judge offered a specific reason for why striking one juror in

particular, Jones, did not give rise to the inference that the

prosecutor struck her because of race. Furthermore, the facts

of this case differ from Williams, in which the trial judge

summarily found (without explanation) that the prosecutor’s

peremptory strikes of three African Americans did not give

rise to a reasonable inference of discrimination. Here, the

California Court of Appeal had the benefit of the trial judge’s

reasoning when it adjudicated Currie’s Batson claim. In light

of this, it was not unreasonable for the appellate court to find

that substantial evidence supported the trial judge’s ruling.

B.

My colleagues in the majority again see things differently.

They conclude that the appellate court’s finding was

unreasonable in light of a comparative analysis with other

jurors who were allowed to serve.

As part of this analysis, the majority writes that it is

“troubling” that the prosecutor’s explanations for the strike

“were largely adopted from the reasons the trial judge had

already suggested, during his discussion of Batson step one.”

CURRIE V. MCDOWELL 41

This is a perplexing critique of the trial court’s handling of

the objection. It is a good thing when trial judges explain

themselves. This practice helps a great deal when appellate

courts review their findings for substantial evidence.

Furthermore, we explicitly noted in Williams that it was

difficult to review the trial court’s step one finding because

the judge simply stated, without explanation, that there was

no prima facie showing of discrimination. Here, the trial

judge avoided this problem by stating his reasoning for the

record. It would have been unwise not to. The fact that the

prosecutor later agreed with the judge’s reasoning is

unremarkable. If anything, the agreement between the judge

and the prosecutor is an indication that there was, in fact, a

clear race-neutral justification for the strike.

The majority instead chooses to discredit and distrust the

prosecutor because he agreed with the judge’s reasoning. This

theory will now control how we review adjudications of

Batson challenges in state courts, and it is unclear what those

courts should do at step one. A judge who stays silent tempts

fate, as does one who speaks. The consequences of this rule

are evident here, as the majority sets aside a conviction on

Batson grounds even when the trial judge observed a reason

for a strike as obvious as a juror’s family’s prior drug arrest

records in a drug-based murder case.

The majority goes on to analyze other reasons that the

prosecutor offered for striking Jones. The majority finds it

“unreasonable” for the prosecutor to have struck Jones (in

part) because her family members had drug problems. The

majority points out that other, seated jurors had drug

problems themselves or had relatives who had drug problems.

The majority also notes that some of the seated jurors were

similar to Jones because they answered some parts of the

42 CURRIE V. MCDOWELL

juror questionnaire the same way that she did. By choosing to

emphasize these similarities, the majority opinion elides the

key difference between Jones and the other jurors: only Jones

had a brother and cousin who were arrested for suspected

drug crimes. The majority downplays this fact and chooses to

focus on others. However, “[t]he panel majority’s attempt to

use a set of debatable inferences to set aside the conclusion

reached by the state court does not satisfy AEDPA’s

requirements for granting a writ of habeas corpus.” Rice v.

Collins, 546 U.S. 333, 342 (2006).

VI.

The majority today tells the People of California that they

must thrice try Currie for murder, or set him free. I cannot

join them in this task. The state appellate court’s adjudication

of Currie’s Batson claim did not “result[] in a decision that

was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States”, and it did not “result[]

in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

His habeas petition “shall not be granted.” Id. Accordingly,

I respectfully dissent from the majority’s decision to grant it.